A Second Court Has Blocked the $100,000 H-1B Fee, and This Order Reaches the 2027 Extension

On September 30, 2026, Judge Haywood S. Gilliam, Jr. of the Northern District of California granted in part a preliminary injunction in Global Nurse Force v. Trump, No. 4:25-cv-08454-HSG. The order vacates the agency policies that implement the $100,000 H-1B payment and bars the agencies from enforcing the payment through those policies, under both Proclamation 10973 and the September 2026 extension, Proclamation 11069, unless they first go through notice and comment rulemaking.

When we wrote about the extension on September 24, the open question was whether the earlier Massachusetts vacatur reached it. This order answers that question for the extension directly, from a second court in a second circuit.

What the court did

The court set aside the implementing materials that turned the proclamation into an operating process: agency memos and FAQs, the October 20, 2025 USCIS update that set out how the payment worked, State Department guidance, and the payment procedures. Those materials defined who paid, when, how exemptions and national interest exceptions were handled, and what proof of payment looked like. Without them, there is no lawful agency mechanism to collect the money until the agencies adopt one through notice and comment.

The vacatur rests on the Administrative Procedure Act, so it applies to the policies themselves rather than only to the five plaintiffs. The court rejected the government's arguments that the "good cause" and "foreign affairs" exceptions excused notice and comment. It denied the government's motion to dismiss and found class certification unnecessary.

What the court did not do

The court did not enjoin the proclamations. Proclamation 11069 (91 FR 60497) remains in force through September 21, 2027 as a presidential document. The court also did not decide whether the President exceeded his statutory authority. That distinction matters in practice: if the agencies complete a notice and comment rulemaking, or an appeals court reverses, collection could resume on a short timeline.

The order also has nothing to do with the proposed $103,265 fee on cap-subject H-1B petitions (91 FR 54817). That is a separate DHS fee rule under its own authority. It remains proposed; the comment period closed September 24, 2026, and no final rule has been published.

Two courts, two circuits

The District of Massachusetts vacated the same category of implementing policies on June 8, 2026 in California v. Mullin, and the First Circuit refused to stay that judgment on July 24. The new order comes from a court in the Ninth Circuit. A government win on appeal in one circuit would not, by itself, revive the policies the other court vacated. For an employer, that is the most durable protection the H-1B program has had since the proclamation issued in September 2025.

It is still a preliminary ruling. A Ninth Circuit appeal is expected, and the First Circuit has not decided the merits of the Massachusetts case. The district court has set a case management conference for October 27, 2026.

What this means for hiring between now and spring

Consular routing. The payment applied to covered beneficiaries outside the United States. With the collection policies vacated, a consular H-1B case no longer carries a lawful agency payment step. That reopens consular processing as a planning option for candidates abroad, but it does not remove the other constraints on consular cases: in person interviews, applying in the country of nationality or residence, and Proclamation 10998 for nationals of listed countries.

Change of status remains the conservative path. Where a candidate is in the United States in a status that allows it, a change of status petition avoids the payment question entirely and keeps the case out of the proclamation's reach regardless of what happens on appeal.

Budgeting. For FY2028 cap planning, the $100,000 line moves from an expected cost to a contingent one. The $103,265 proposed fee stays on the list as its own scenario.

What to do

1. Do not pay the $100,000 or ask a beneficiary to pay it without confirming current USCIS, State Department and CBP handling with counsel on the day of filing. Agency practice after a vacatur can lag the order.
2. Document the posture of every pending and planned H-1B case: location of the beneficiary, filing type, filing date, and whether any payment was made or demanded.
3. If you paid under the vacated policies, keep the receipt, the Pay.gov record and the filing it accompanied. Do not assume a refund process exists; preserve your position so you can use one if it is created.
4. Prefer change of status where it is available for candidates already in the United States.
5. Model FY2028 under four scenarios: no payment, the proclamation payment restored, the proposed $103,265 fee finalized, and both.
6. Watch three things: a Ninth Circuit appeal or stay motion in Global Nurse Force, the First Circuit's merits ruling in California v. Mullin, and any notice and comment rulemaking on the payment in the Federal Register.

Authorities

• Global Nurse Force v. Trump, No. 4:25-cv-08454-HSG (N.D. Cal. Sept. 30, 2026) (order granting in part motion for preliminary injunction).
• California v. Mullin (D. Mass. June 8, 2026) (judgment vacating implementing policies); stay pending appeal denied (1st Cir. July 24, 2026).
• Proclamation 10973 (Sept. 19, 2025); Proclamation 11069, 91 FR 60497 (Sept. 23, 2026), extending it through Sept. 21, 2027.
• DHS proposed rule, H-1B cap-subject petition fee, 91 FR 54817, Docket USCIS-2026-0298, RIN 1615-AD20 (proposed; not final).
• Administrative Procedure Act, 5 U.S.C. 553, 706.